04-002881 Bobby Williams, D/B/A Bobby Williams Farms vs. Dal Don Produce, Inc.; And Fidelity And Deposit Company Of Maryland Status: Closed Recommended Order on Wednesday, November 3, 2004.

Summary: Petitioner showed that Respondent failed to pay $5,956.60 for watermelons Petitioner delivered to Respondent and that responsibility for payment evolves to the issues of one bond.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBY WILLIAMS, d/b/a BOBBY )

WILLIAMS FARMS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2881

)

DAL DON PRODUCE, INC. AND )

FIDELITY AND DEPOSIT COMPANY OF )

MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the

administrative hearing of this case on October 1, 2004, in

Sebring, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARA NCES

For Petitioner: Bobby Williams, pro se

Bobby Williams Farms

5005 Placid View Drive

Lake Placid, Florida 33582

For Dal Don Produce, Inc.:

(No Appear ance)

For Fidelity & Deposit Company of Maryland:

(No Appearance)

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether

Respondent, Dal Don Produce, Inc. (Dal Don), owes Petitioner

$5,956 for watermelons for the reasons stated in the Producer

Complaint filed with the Department of Agriculture and Consumer

Services (Department) on December 26, 2003.

PRELIMINARY STATEMENT

On December 26, 2003, Petitioner filed a Producer Complaint

with the Depa rtment pursuant to Section 601.66, Florida Statutes

(2003). By letter dated August 16, 2004, the Department

referred the matter to DOAH to conduct an administrative

hearing. Neither of the Respondents in this case appeared at

the administrative hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted three exhibits for admission into

evidence. The identity of the witnesses and exhibits and any

attendant rulings, are set forth in the official record of this

proceeding. Petitioner did not request a transcript of the

administrative hearing and did not file a proposed recommended

order.

FINDINGS OF FACT

1. Pursuant to an agreement between Petitioner and Dal

Don, Petitioner delivered seven loads of watermelons to Dal D on

between November 11 and 24, 2003. The watermelons weighed

approximately 291,016 pounds .

2. Dal Don agreed to pay Petitioner $21,956.60 for the

watermelons. Dal Don paid Petitioner only $16,000. Dal Don

owes Petitioner $5,956.60. Dal Don did not p rovide Petitioner

with an accounting or explanation for the unpaid amount.

3. Fidelity & Deposit Company of Maryland (Fidelity) is

the surety for Dal Don and provided bond for Dal Don pursuant to

Surety Bond Number 08374953 (the bond). The conditions and

provisions of the bond are to assure proper accounting and

payment to producers, including Petitioner. In the absence of

payment from Dal Don, responsibility for payment evolves to

Fidelity.

CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the parties a nd the subject

matter of this proceeding pursuant to Subsection 120.57(1),

Florida Statutes (2004). DOAH provided the parties with

adequate notice of the administrative hearing. Neither Dal Don

nor Fidelity appeared at the hearing or otherwise submitted any

evidence.

5. The burden of proof is on Petitioner. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 2d DCA 1981). Petitioner must show by a preponderance

of the evidence that he is entitled to the remedy claimed i n the

Producer Complaint.

6. Petitioner satisfied his burden of proof. Dal Don is

licensed as a dealer in agricultural products. Dal Don failed

to make proper payment and account for watermelons that

Petitioner delivered to Dal Don. §§ 601.03, 601.64, 601.65, and

601.69, Fla. Stat. (2003).

7. Sections 601.65 and 601.69, Florida Statutes (2003),

require Dal Don to account for all of the watermelons that

Petitioner delivered to Dal Don. Dal Don has breached its

statutory duty to account for the waterm elons it received from

Petitioner .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order

adopting the findings and conclusions in this Recommended Order

and requiring Respo ndents to pay Petitioner the sum of

$5,956.60.

DONE AND ENTERED this 3rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2004.

COPIES FURN ISHED :

Brenda D. Hyatt, Bureau Chief

Department of Agriculture and

Consumer Services

Bureau of License and Bond

407 South Calhoun Street, Mayo Building

Tallahassee, Florida 32399 - 0800

Bobby Williams

Bobby Williams Farms

5005 Placid View Drive

Lake Pla cid, Florida 33582

C. Catherine Bloebaum

Dal Don Produce, Inc.

Post Office Box 120036

Clermont, Florida 34712 - 0036

Kathy Alves

Fidelity & Deposit Company of Maryland

Post Office Box 87

Baltimore, Maryland 21203

Honorable Charles H. Bronson

Commissio ner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahas see, Florida 32399 - 0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.